United States v. Guillermo Patlan ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 21‐1500
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GUILLERMO PATLAN,
Defendant‐Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:18‐cr‐20034‐SEM‐EIL‐1 — Sue E. Myerscough, Judge.
ARGUED DECEMBER 3, 2021 — DECIDED APRIL 12, 2022
Before ROVNER, HAMILTON, and JACKSON‐AKIWUMI, Circuit
Judges.
ROVNER, Circuit Judge. Guillermo Patlan appeals from the
sentence that the district court imposed after his second
revocation of supervised release. He asserts that the court erred
by failing to recognize its discretion to treat a failed drug
screening as a Grade C rather than a Grade B violation. He also
2 No. 21‐1500
claims that the court erred when it imposed a term of home
confinement without justifications as part of his new condi‐
tions of supervised release. We affirm.
I.
In 2012, Guillermo Patlan pled guilty to conspiracy to
distribute controlled substances in violation of 21 U.S.C. §§ 841and 846, and 18 U.S.C. § 2. The district court sentenced him to
ninety‐five months’ imprisonment, to be followed by a four‐
year term of supervised release. After a retroactive amendment
to the sentencing guidelines, the district court reduced his term
of imprisonment to seventy‐nine months. Patlan completed
that term of imprisonment and began his first period of
supervised release in April 2017. Because of positive drug tests
and other violations, in January 2019, the court modified the
terms of his release to include six months of home confine‐
ment. In June of that year, Patlan’s probation officer filed a
petition to revoke his supervised release, alleging that Patlan
had failed to participate in substance abuse treatment and had
possessed controlled substances on five occasions, as evi‐
denced by positive drug tests. Patlan admitted the violations
and the district court revoked his supervision and sentenced
him to a term of eighteen months’ imprisonment. The court
also imposed a three‐year term of supervised release with
conditions that included six months of home confinement.
Patlan completed the prison term and began his second
period of supervised release in September 2020. Although he
initially complied with the conditions imposed, in December
2020, he tested positive for amphetamine and methamphet‐
amine. The following month, he committed domestic battery,
No. 21‐1500 3
a charge for which he pled guilty in state court. His probation
officer filed a petition to revoke supervision, alleging that he
twice violated the condition that he not commit another
federal, state, or local crime. In particular, the petition alleged
two new crimes: first, Patlan “possessed and used amphet‐
amine and methamphetamine” as evidenced by a positive
drug test. Second, he committed domestic battery, a misde‐
meanor under Illinois law, when he attacked his girlfriend.1
Prior to the revocation hearing, the Probation Office filed a
“Violation Memorandum” with the district court, detailing the
history of Patlan’s supervision as well as the alleged violations
underlying the petition to revoke. R. 36. The Memorandum
asserted that Patlan possessed and used amphetamine and
methamphetamine as evidenced by a positive drug test, and
that he had committed the offense of domestic battery when he
battered his girlfriend. According to the Probation Office, the
drug possession was classified as a Grade B violation of the
terms of supervised release. In combination with Patlan’s
Criminal History Category V, the Probation Office calculated
the guidelines range as eighteen to twenty‐four months of
imprisonment, and noted that the guidelines recommended
imposing the unserved portion of home confinement, in this
case sixty‐one days, as an additional term of imprisonment.
The Violation Memorandum also included proposed condi‐
tions for supervised release, together with justifications for
each condition.
1
The petition also alleged a number of unauthorized absences during the
period of home confinement but because the government ultimately agreed
to dismiss those charges, we need not address them.
4 No. 21‐1500
The district court circulated its own tentative Conditions of
Supervised Release along with justifications for those condi‐
tions so that the parties would have an opportunity to review
them before the revocation hearing. R. 39. The court noted that,
prior to sentencing, Patlan would have an opportunity to read
the conditions and justifications, discuss them with his
attorney, and object. The court directed Patlan to initial each of
the conditions to confirm that he had read them, to sign the last
page to affirm that he had reviewed the conditions and
justifications, and to indicate whether he waived oral reading
of the conditions at the hearing. The court noted that, with one
exception, the conditions tracked those proposed by the
Probation Office in its Violation Memorandum, and included
two additional discretionary conditions that did not appear in
that Memorandum. Those two conditions provided that Patlan
would serve six months of home confinement at the start of his
release from custody, and that he would comply with condi‐
tions of home confinement and monitoring during that term,
leaving home only for a medical emergency, drug treatment,
or with the advance permission of the Probation Office. The
court did not include any justifications specifically addressing
those last two discretionary conditions.
In its Commentary on Sentencing Factors, the government
urged the court to impose a twenty‐four month term of
imprisonment plus the sixty‐one days to account for the
unserved period of home confinement. R. 38. In Patlan’s
Sentencing Commentary, he objected “to the application of the
Grade B guideline range for policy reasons[.]” R. 40, at 1. He
proposed that the court treat the drug charge as a Grade C
violation and impose a below‐guidelines sentence of thirteen
No. 21‐1500 5
months. He contended that treating a positive drug screening
as possession of a controlled substance overstates the serious‐
ness of the violation conduct and leads to sentencing dispari‐
ties, contradicts the plain language of 18 U.S.C. § 3583, and is
at odds with the Sentencing Commission’s policy statements
and intent. Citing United States v. Trotter, 270 F.3d 1150 (7th Cir.
2001), Patlan acknowledged that failed drug screens may
support an inference of possession but that courts were not
required to draw the inference. Instead, courts possess the
discretion to conclude that a positive drug test is insufficient to
establish possession. Alternatively, he continued, the court
retained discretion to vary from the Grade B guideline range
and impose a sentence within the Grade C range of seven to
thirteen months. He contended that the government’s pro‐
posed sentence was far greater than was necessary and
suggested that thirteen months was sufficient.
Importantly, Patlan also “stipulate[d] to the violation
conduct alleged in Violation Numbers 1 and 2, as listed in the
Petitions [sic] for Warrant or Summons for Offender under
Supervision.” R. 40, at 4. Violation Number 1 in that Petition
described the drug offense:
1. LAW VIOLATION: POSSESSION OF A
CONTROLLED SUBSTANCE … On or about
December 28, 2020, Mr. Patlan possessed and used
amphetamine and methamphetamine as determined
by Alere Toxicology Services, after a urine specimen
provided by the offender tested positive for amphet‐
amine and methamphetamine. Mr. Patlan denied
using amphetamine and methamphetamine.
6 No. 21‐1500
R. 25, at 2. In addition to the stipulation, Patlan waived his
right to a revocation hearing, and “plead[ed] guilty to those
violations as alleged[.]” R. 40, at 3–4.
At the revocation hearing, the court listed the two charged
violations, describing the first as “possessing and using
amphetamine and methamphetamine,” and the second as
“[c]ommitting the offense of domestic battery.” R. 45, at 5.
Counsel for Patlan indicated that he was “willing to accept
guilt” for both charged violations. Id. The court explained to
Patlan directly that his “alleged violations involving the
possession of amphetamine and methamphetamine [are] all
within the scope of 18 United States Code Section 3583(g)(1)
which mandates revocation.” R. 45, at 8. Patlan indicated that
he understood and that he wished to waive his right to a
hearing. R. 45, at 8–9. Based on Patlan’s concession that he was
guilty of the charged violations, the court then found by a
preponderance of the evidence that Patlan violated the terms
of his supervised release by possessing and using amphet‐
amine and methamphetamine, and by committing domestic
battery. R. 45, at 9–10. In response to the court’s questions,
Patlan also confirmed that he had read the violation memoran‐
dum and reviewed it with his lawyer. R. 45, at 10.
The court then entertained Patlan’s “policy objection” to the
violation memorandum. Counsel argued that although Trotter
allows courts to infer that a failed drug screen is a Grade B
“possession” violation, the court is not required to so infer, and
may instead treat a failed drug screen as a Grade C violation,
which would result in a lower sentencing range. The govern‐
ment disagreed and contended that Trotter was binding and
required the court to treat the failed drug screen as a Grade B
No. 21‐1500 7
violation “because the defendant possessed amphetamine and
methamphetamine.” R. 45, at 11–12. The government explained
that the court possessed the discretion to sentence Patlan as if
the violation were Grade C rather than Grade B, but discour‐
aged the court from doing so for a variety of reasons. The
district judge noted that she had read Trotter again and
concluded that government counsel was “correct in all of his
points.” R. 45, at 13. The court then found that the most serious
offense was a Grade B violation.
Patlan’s counsel then affirmed that she reviewed the court’s
conditions of supervision with her client and had no objections.
R. 45, at 14. Patlan personally indicated that he had adequate
time to review the conditions with his lawyer, and affirmed
that he had initialed each condition and signed the last page.
R. 45, at 14. The court then warned Patlan and his lawyer that
“the failure to object at this time may result in waiver of any
objection to the conditions on appeal.” R. 45, at 14. In response
to the court’s question, Patlan indicated that he had no
objections to the conditions as the court had amended them. Id.Patlan then expressly waived an oral reading of the conditions
and justifications. R. 45, at 14–15.
After the government requested a sentence of twenty‐four
months of imprisonment followed by forty‐eight months of
supervised release, Patlan’s counsel argued vigorously for a
“variance to the Grade C guideline range of 7 to 13 months.” R.
45, at 20. The court noted that the policy statements of the
Sentencing Commission are advisory, not mandatory, and then
sentenced Patlan to eighteen months’ imprisonment (which
included the sixty‐one days of home confinement that were
8 No. 21‐1500
remaining when his supervision was revoked), followed by
twenty‐four months of supervised release.
II.
On appeal, Patlan asserts that the district court erred when
it failed to recognize that it had discretion to reject the infer‐
ence that he possessed controlled substances from a positive
drug test. He also maintains that we must remand for
resentencing because the court failed to provide justifications
for the six‐month term of home confinement imposed as a
condition of supervised release, and because the court failed to
pronounce that condition orally during the hearing. Both of
Patlan’s arguments miss the mark.
At a revocation hearing, the government must prove by a
preponderance of the evidence that the defendant violated a
condition of supervised release. 18 U.S.C. § 3583(e)(3). In
general, we review the revocation of supervised release for
abuse of discretion, and we review the district court’s factual
findings supporting that revocation for clear error. United
States v. Raney, 797 F.3d 454, 463 (7th Cir. 2015). We review the
district court’s interpretation of the sentencing guidelines de
novo, and the findings of fact supporting the sentence for clear
error. United States v. McLaughlin, 760 F.3d 699, 703 (7th Cir.
2014). Our review of a sentence imposed in a revocation
proceeding is highly deferential; we will sustain the sentence
so long is it is not plainly unreasonable. United States v.
Boultinghouse, 784 F.3d 1163, 1177 (7th Cir. 2015).
In general, simple use of a drug constitutes a Grade C
violation of the conditions of supervised release, the lowest
level violation. Possession of a drug potentially supports a
No. 21‐1500 9
Grade B violation, depending on whether it fits the section
7B1.1(a)(2) definition of Grade B, which encompasses “conduct
constituting any other federal, state, or local offense punishable
by a term of imprisonment exceeding one year.” But in Trotter,
we considered whether use of marijuana permits the district
judge to infer that the user committed the crime of possessing
that drug:
This question has a simple answer. Of course use
may support an inference of possession. A person
might test positive for marijuana if he never touched
the stuff but spent a lot of time around heavy smok‐
ers and ended up with some of the drug in his lungs.
This is unlikely, but possible, and a district judge
therefore might treat one or even two positive tests
as inadequate to prove possession of the drug. But
a judge also could infer from the presence of mari‐
juana metabolites in the blood that the user pos‐
sessed that drug, if only in the process of smoking a
communal joint. Trotter tested positive at least 3
times and skipped a further 7 tests, which could
support a conclusion that he knew that he would
have tested positive on those occasions too. That is
more than enough to permit a rational trier of fact to
infer that Trotter possessed marijuana. The burden
of persuasion for revocation of supervised release is
a preponderance of the evidence, and the finding of
possession on a record such as this cannot be
deemed clearly erroneous. Inferring possession of a
drug from the consumption of that drug is just as
sensible as inferring, from the statement “I ate a
10 No. 21‐1500
hamburger for lunch,” that the person possessed the
hamburger before wolfing it down.
Trotter, 270 F.3d at 1153. That passage makes clear that the
inference of possession is permissible but not required,
depending on the circumstances.
But in this case, there was no need for the court to draw any
inference at all. Patlan repeatedly admitted that he both used
and possessed amphetamine and methamphetamine. Based on
Patlan’s repeated admission that he possessed the controlled
substances, the court appropriately found by a preponderance
of the evidence that he had violated the terms of his supervised
release. Raney, 797 F.3d at 463. As the court informed Patlan,
possession of a controlled substance mandated revocation of
his supervised release. See 18 U.S.C. § 3583(g)(1). Because
Patlan’s possession of methamphetamine is a felony punish‐
able by a term of imprisonment exceeding one year under both
Illinois law, 720 ILCS 646/60(b)(1), and federal law, 21 U.S.C.
§ 844(a), the court properly categorized his violation as Grade
B. Specifically, possession of a controlled substance is punish‐
able by up to two years in prison for defendants like Patlan
with prior controlled substance convictions. See 21 U.S.C.
§ 844(a), and Trotter, 270 F.3d at 1154–55 (holding that courts
may consider a defendant’s prior drug conviction in determin‐
ing whether an offense is punishable by a term of imprison‐
ment exceeding one year under section 7B1.1(a)(2)). And
Illinois law treats possession of even small amounts of meth‐
amphetamine as a Class 3 felony. 720 ILCS 646/60(b)(1). The
court therefore correctly calculated the guidelines range when
it concluded that Patlan’s conduct constituted a Grade B
No. 21‐1500 11
violation. United States v. Shockey, 941 F.3d 282, 283–84 (7th Cir.
2019).
Although on appeal Patlan attempts to frame his admis‐
sions as being limited to use of controlled substances, the
record simply does not bear that out. His repeated admissions
that he possessed controlled substances are clear on the face of
the record. We add for the sake of completeness that if Patlan
had not conceded that he was guilty of possession, the court
would have had discretion to treat his positive drug test as use
only and not possession. Trotter, 270 F.3d at 1153. But he
presented no facts to the court supporting that inference. That
is, unlike a defendant who may have tested positive for
marijuana simply because he was in close proximity to heavy
smokers of that substance, Patlan does not claim that his
ingestion of controlled substances was accidental or inadver‐
tent or in any way not in his control. In his case, the more
natural inference was that he possessed the drugs before using
them, in the same way that a “person possessed the hamburger
before wolfing it down.” Trotter, 270 F.3d at 1153.
Because of Patlan’s admission of possession, the district
court properly understood Patlan’s “policy” argument to
address discretion as a sentencing matter, not discretion
whether to infer a lesser Grade violation. The court fully
acknowledged its discretion to sentence a Grade B violation as
if it were a Grade C violation. The court simply declined to do
so, finding the Grade B guidelines range to be more appropri‐
ate. There was no error in that conclusion and the court’s
within‐guidelines sentence was reasonable.
12 No. 21‐1500
We turn to Patlan’s claim that the court erred in imposing
a term of home confinement as a condition of supervised
release and that the court further erred by failing to support
that condition with justifications. The government contends
that Patlan waived any objections to the conditions of super‐
vised release, barring appellate review of this claim. In general,
we review preserved challenges to the conditions of super‐
vised release for abuse of discretion. United States v. Paul, 542
F.3d 596, 599 (7th Cir. 2008). But when a defendant does not
object to the conditions of confinement, we must decide
whether the defendant has forfeited or waived any objections.
United States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019).
“Waiver occurs when a party intentionally relinquishes a
known right and forfeiture arises when a party inadvertently
fails to raise an argument in the district court.” Flores, 929 F.3d
at 447. Patlan insists that the failure to object to the home
confinement conditions was inadvertent. Counsel asserts that
she saw the references to home confinement in the court’s
Conditions of Supervised Release, discussed them with Patlan
prior to the hearing, believed them to have been included in
error because neither party requested home confinement, and
fully intended to raise the issue with the district court at the
hearing. For his part, Patlan initialed those conditions and
signed the document as the court had requested, and also
waived the reading of the conditions of confinement at the
hearing. Counsel explains on appeal that she simply forgot to
raise the issue with the district court at the hearing. Counsel
concedes that issues regarding the quality of representation are
usually better addressed on collateral attack, where a factual
record may be developed. See United States v. Rucker, 766 F.3d
No. 21‐1500 13
638, 647 (7th Cir. 2014) (a defendant who presents an ineffec‐
tive‐assistance claim for the first time on direct appeal has little
to gain and everything to lose as the record is unlikely to lend
sufficient support to such a claim, and by raising it on direct
appeal, the defendant will be foreclosed from pursuing the
same claim on collateral review). In this instance, counsel’s
claim that she fully intended to object to the term of home
confinement and simply forgot to do so is not supported by
anything in the direct appeal record. We must decide whether
the claim was forfeited or waived on the basis of the record as
it exists in the district court.
In this case, we find that Patlan waived any challenges to
the conditions of confinement.
When a defendant does not address supervised
release conditions in the district court, this court will
assess whether she waived those challenges. We will
find waiver, as we do here, when the defendant has
notice of the proposed conditions, a meaningful
opportunity to object, and she asserts (through
counsel or directly) that she does not object to the
proposed conditions, waives reading of those
conditions and their justifications, challenges certain
conditions but not the one(s) challenged on appeal,
or otherwise evidences an intentional or strategic
decision not to object.
Flores, 929 F.3d at 450. Patlan meets every one of those factors.
The Probation Office’s Violation Memorandum advised
Patlan of the conditions that Office was proposing to the court.
The court then issued its own pre‐hearing Conditions of
14 No. 21‐1500
Supervised Release, adopting the conditions proposed by the
Probation Office with a modification to one of those conditions,
and adding two of its own conditions related to home confine‐
ment. At the hearing, the court referenced the Conditions of
Supervised Release that it had issued prior to the hearing and
then made one small, additional change to one of the condi‐
tions. Patlan and his lawyer affirmatively indicated that they
had reviewed the conditions, that Patlan had initialed them
and signed the document, and they did not have any objec‐
tions. The court then warned Patlan that a failure to object at
the hearing might result in a waiver to any objections on
appeal. Patlan indicated he had no objections and confirmed
that he waived an oral reading of the conditions and justifica‐
tions. After the court imposed the sentence, including the
mandatory and discretionary conditions that the court had
previously mentioned, the court gave Patlan and his attorney
yet another opportunity to object, and both declined. On this
record, we must conclude that: (1) Patlan had notice of the
conditions; (2) he had a meaningful opportunity to object to
them; (3) both he and his lawyer affirmatively indicated that
they did not object to any of the conditions; and (4) he waived
the reading of those conditions and their justifications. Al‐
though he did not challenge any of the conditions, he did
object to being sentenced for a Grade B violation, and so he
challenged part of the sentence but not the part to which he
now objects, which tends to show that the failure to object was
strategic, the final factor we delineated in Flores. 929 F.3d at
450. Neither Patlan nor his attorney gave the district court any
reason to believe that this was anything other than an inten‐
tional or strategic decision not to object.
No. 21‐1500 15
We therefore conclude that Patlan waived any objections to
the conditions of supervised release, including any lack of
justifications for the home confinement conditions. Waiver
extinguishes any claim of error, precluding appellate review.
United States v. Olano, 507 U.S. 725, 733 (1993); United States v.
Picardi, 950 F.3d 469, 473–74 (7th Cir. 2020); United States v.
Aslan, 644 F.3d 526, 537 (7th Cir. 2011). Finally, we note that
even defendants who waive challenges to supervision condi‐
tions on direct appeal may petition the court for a modification
of those conditions. 18 U.S.C. § 3583(e)(2); Flores, 929 F.3d at
451. If Patlan finds the term of home confinement too onerous
or if circumstances change during imprisonment or after
release, Patlan may seek a modification of the conditions
before the district court.
AFFIRMED.